Chapter IV: Tribal Custom of the Irish Tribes (2)

Half the eric-fine of every person is to be paid for a foot, a
hand, an eye, a tongue.

But inasmuch as the ‘eric-fine’ in this case might be taken by mistake to include the honour-price as well as the coirp-dire, the commentary adds:--

He is entitled to half ‘coirp-dire’ and half compensation
(aithgin) and full honour-price.

The loss of the hand was reckoned at half the coirp-dire. The full honour-price was due for the insult or assault.

Yet another clause in these canons seems to show that not only the coirp-dire of seven cumhals was familiar to the makers of the canons, but also the honour-price.

In the Brehon Laws the honour-price was payable for breach of a chieftain’s protection, and in the case of the Ri-tuaith or kingly chieftain of a Tuath the honour-price was, as we have seen, seven cumhals. And so also was that of the bishop of the church in his territory.[88]

[Sidenote: ‘Honour-price’ of a bishop or king seven ancillæ.]

Accordingly, in the following clause in the canons the bishop is put in the same position as a king, with what was practically an honour-price of seven ancillæ:--

_Patricius dicit_: Omnis qui ausus fuerit ea quæ sunt regis
vel episcopi aut scribæ furari aut rapere aut aliquod in eos
committere, parvipendens dispicere, VII. ancillarum pretium
reddat aut VII. annis peniteat cum episcopo vel scriba.

_Patricius dicit_: Every one who shall dare to steal anything
belonging to a king or bishop or scribe, or to take away from
or commit anything against them heedlessly, shall pay the price
of seven ancillæ or do penance for seven years with a bishop or
scribe.[89]

So that, though it is not very easy to put an exact date upon these canons, they seem clearly to adopt and confirm for ecclesiastical persons the Irish coirp-dire of seven ancillæ, and the highest honour-price also of seven ancillæ. And further the _ancilla_ of these canons was, it appears, of the same silver value as the _cumhal_ of the Brehon Laws.

VI. THE BRETON OR GALLIC WERGELD OF THE SO-CALLED ‘CANONES WALLICI.’

It is perhaps possible with help from another set of canons to obtain further evidence of Celtic usage as to the fine for homicide, and what is still more to the point, to trace it back to the Continental side of the Channel.

[Sidenote: The so-called ‘Canones Wallici’ of perhaps the Breton Church.]

At the end of the Latin version of the Dimetian Code of South Wales are appended as part of chapter XLIX. several clauses which do not belong to the Code and are quite inconsistent with its provisions. These clauses are carelessly extracted, with variations, from a set of canons which, from their thus partly appearing at the end of the Latin version of the Dimetian Code, have come to be known as the ‘Canones Wallici.’

The oldest MS. of this document is referred to the 8th century, and the canons themselves are referred by Haddan and Stubbs to the 7th century.[90]

It is not at all clear that, notwithstanding the name they have acquired, they are of Welsh origin.

The intercourse between the missionary monks and churches of Brittany, Cornwall, Wales, and Ireland was so intimate that there is no difficulty in understanding how a Welsh scribe or copyist falling upon these canons should add extracts from them to a Latin copy he was making of the Dimetian Code. Whether of Welsh origin or not, some of them may have been used, amongst others, by the Church in South Wales.

It may seem presumptuous to doubt their Welsh origin after the opinion expressed both by Wasserschleben and such competent authorities as Haddan and Stubbs, to whose labours the student is so greatly indebted. But that opinion is doubtfully expressed, and reference is made by them to the fact that two of the three MSS. describe the collection of canons not as ‘Canones Wallici’ but as ‘_excerpta de libris Romanorum et Francorum_,’ and ‘_excerpta de libris Romanis et Francorum_’ while the third, of the 8th century, does not seem to have any heading but ‘_Incipit justicium culparum_.’ Haddan and Stubbs assign the origin of these canons to that period (c. A.D. 550-650) during which both the Welsh Church and the Welsh Principalities appear to have become organised, _i.e._ to the period following St. Patrick and St. Finian, during which the monastic churches of South Wales were the channel of intercourse between the Breton and Irish Churches. This _collection_, according to the same authority, may date from the 7th century.

The Canons may have been meant for use on both sides of the Channel. And as they are ‘_excerpta_’ from books of the Romans and Franks, they seem to originate from the Continental side, however much they may have been used in Wales.

When we come to examine them, they bear every evidence of being ‘_excerpta_,’ and we know from the _excerpta_ of Isidor what different materials may be brought together in such a collection. There is no continuous plan or order apparently running through the whole. And certain of the canons, chiefly those relating to _homicide_, seem to be marked off from the remainder by the payments being made throughout in ‘_ancillæ_’ and ‘_servi_’; whilst in most others the payments are made in _libræ argenti_ or in _libræ stagni_, or occasionally in _solidi_, _unciæ_, and _scripula_.

The safer course may be, therefore, to treat them, not as a consistent and single set of canons, but as _excerpta_ from various sources.

[Sidenote: The clauses as to homicide.]

Following the eighth-century MS. as most likely to be correct in its text, the _excerpta_ relating to homicide are these:--

C. 1. Si quis homicidium ex intentione commiserit, ancillas III.
et servos III. reddat et securitatem accipiat.

Canon 1. If any one by intention shall have committed homicide,
let him pay three ancillæ and three servi and acquire safety.

C. 2. Si quis judicio fuerit competitus et præstando verum durus
esse voluerit et ipsam intentionem fuerit interfectus, ancillas
II. et servos II. reddi debere præcipimus. Quodsi manum aut pedem
vel quemlibet membrum perdiderit similiter duas partes prætii se
noverit accepturum.

Canon 2. If any one, being brought to justice, tries to resist
the arrest and is slain in the attempt, we declare that two
ancillæ and two servi shall be given for him, but if he loses a
hand or a foot or any limb let him likewise know that he shall
accept two thirds of the price.

C. 3. Si quis homicidii causa fuerit suspicatus et non ei titulus
comprobandi, XL. et VIII. viris nominatis, ex quibus XXIV. in
ecclesia jurent eum esse veracem, sic sine causa discedat. Quodsi
non juraverit, ancillas III. et servos III. reddat et securitatem
accipiat.

Canon 3. If any one shall be suspected of homicide, but there
are not means of proof (‘titulus comprobandi’), 48 men having
been named, of whom 24 shall swear in a church that he is right
(‘verax’), so he shall depart innocent (‘sine causa’); but if
he [they?] shall not have sworn he shall pay _three ancillæ and
three servi_ and be free.

C. 4. Si servus ingenuum occiderit et culpa ingenui fuerit
hoc, de fuste aut dextrali aut dubio aut de cultello fuerit
interemptus, ipse homicida parentibus tradatur, et quidquid
faciendi voluerint habeant potestatem.

Canon 4. If a slave shall kill a freeman and it shall be the
fault of the freeman, and he shall have been slain by a cudgel,
or a hatchet, or a … or a knife, the homicide himself shall be
handed over to the parentes and they shall have power to do what
they like with him.

C. 5. Si quis dominus servum arma portare permiserit et ingenuum
hominem occiderit, ipsum et alium juxta se noverit rediturum.

Canon 5. If any master permits his slave to carry arms and he
kills a freeman, let him know that he must hand over the slave
himself and another likewise.

C. 6. Si quis ingenuus servum alterius sine culpa occiderit,
servos duos domino. Quod si culpa fuerit servi alius, alius
servus domino reformetur.

Canon 6. If a freeman shall kill the slave of another without
fault (of the slave), he shall pay two slaves to the master.
But if it were the fault of the slave, another slave shall be
restored in his place.

C. 12. Si quis homicidium fecerit et fugam petierit, parentes
ipsius habeant spacium intra dies XV., ut aut partem restituant
et securi insedeant, aut ipsi de patria vadant; post hoc si
ipse interemptor venire voluerit, reddat medium quod restat et
vivat securus. Quodsi interim occisus fuerit, mancipium et quæ
acceperint faciant restaurari.

Canon 12. If any one shall have done homicide and shall have
sought flight, his parentes shall have the space of fifteen days,
in order either to make their share of restitution and remain
safe, or themselves quit the country. After this, if the slayer
himself wants to return, he shall pay the remaining half and
be safe. But if in the meanwhile he shall be slain they shall
cause the slave [? slaves] and whatever they had received to be
restored.

[Sidenote: Payments of six _ancillæ_ or _servi_ for homicide. The slayer to pay half and the parentes half.]

Here, apparently, is a fairly complete and consistent set of canons relating to homicide. All the payments are to be made in _ancillæ_ and _servi_. And the payment for intentional homicide is apparently a fixed payment of three ancillæ and three servi, _i.e._ six slaves in all. Canons 1 and 2 are consistent and conclusive on this point.

Now, looking at these canons alone, two facts point very strongly to an Irish rather than a Welsh connection, or perhaps we ought to say, to a Goidelic rather than Cymric connection. In the Brehon Laws, as we have seen, the payments are made in _cumhals_ or ancillæ, and the fixed wergeld or _coirp-dire_ is strictly speaking _six_ ancillæ, and one added for a special object, making seven cumhals in all. In the Cymric Codes, on the other hand, the galanas is paid in cows and never in ancillæ, and the amount of the galanas is graduated according to rank, that of the lowest and youngest tribesman being 60 cows, nearly three times as great as the six ancillæ and servi of these canons.

[Sidenote: The Irish coirp-dire apparently common to South Wales and the Breton churches from fifth to seventh century.]

The force of these suggestions of Irish connection is greatly increased by the fact that nowhere else in the collections of Canons and Penitentials except in these so-called ‘Canones Wallici’ and the ‘Canones Hibernenses,’ and closely allied sources, do we find the payments expressed in ancillæ. And it must be remembered that the intimacy between Breton and Cornish saints was mainly with South Wales, and through South Wales with Ireland, and further that South Wales, until conquered by Maelguin, was Goidelic rather than Cymric.

But whether the payment for homicide in the ‘Canones Wallici’ be the coirp-dire of the Brehon Laws or not, if we may recognise in these rules as to homicide the customs current in some degree on both sides of the Channel, let us say from the fifth to the seventh century, we cannot also fail to recognise in them evidence of influences at work which have broken away partly from tribal usage, and which hail, not from the primitive tribal instincts of Irish or Gallic tribes, but from the side of Roman and ecclesiastical law, to which the districts alluded to had long been subject.

We shall see more and more how foreign the tribal instinct of the solidarity of the kindred, and the consequent obligation on the whole kindred for the whole composition for homicide, were to Roman law and Christian feeling, and how soon under these influences the disintegrating process began in Gallo-Roman districts, causing the solidarity of the kindred to give way.

The solidarity of the kindred is partly recognised in these canons, but it is also partly ignored.

[Sidenote: The extent of the liability of the parentes of the slayer.]

The 12th canon states, as we have seen, that if the murderer had taken flight his parentes had fifteen days allowed either to pay part and be secure, or themselves leave the country. What part? The clause states that if the murderer wished to return from his exile he might pay the _half_ that remained, and thereafter live secure. So that it would seem that the kindred were only liable to pay half, instead of the whole coirp-dire of six ancillæ and servi. If, in the meantime, the murderer was killed, presumably by the parentes of the slain, the slaves, or whatever else had been received by the parentes of the slain from the parentes of the slayer, had to be restored to the latter, the feud having been satisfied by his death at their hands.

In the Brehon Laws as in the Cymric Codes, the solidarity of the kindred was complete. As we have seen, under Irish custom the whole kindred of the four nearest hearths were liable for the payment of the _coirp-dire_ for unnecessary homicide. But the fact that the payment of wergelds was foreign to Roman law, combined with the claim of the Church to protect from death criminals taking refuge at the altar, had no doubt in Northern Gaul, as we shall find was the case in Southern Gaul also, already begun to break up to some extent the tribal solidarity on which joint liability for the payment of wergelds was based.

[Sidenote: The cleric who slays is to give himself up to the slain person’s parentes.]

Those criminals who claimed protection at the altar were, under Gallic ecclesiastical usage, as we shall see, saved from death, but at the same time handed over as slaves to the parentes of the slain. And it is not difficult to detect the lines of thought leading to this result. In the ‘Penitentials’ attributed to St. Finian,[91] the spirit in which the missionary churches of Brittany, Wales, and Ireland, from their clerical point of view, dealt with crime very clearly appears. A layman, in addition to making composition to the injured person, should also do penance; but a cleric who possessed no property of his own could not pay the composition (s. 9, p. 110). What, then, was he to do in a case of homicide? The penitential (s. 23) lays down the rule:--

If any cleric kills his neighbour he must undergo ten years’
banishment with seven years’ penance. If after ten years he has
acted rightly and is approved by the testimony of the abbot or
priest, let him be received back into his country and let him
satisfy the friends of him whom he has killed. Let him return to
the father or mother (of the slain), if alive, saying ‘Behold I,
as for your son, will do whatsoever you tell me.’ If he does not
rightly do this he is not to be received--‘in eternum.’

Then in s. 53 is added, ‘If any one will propose better rules we will accept and follow them.’

To sum up the evidence of the canons, we can hardly claim to have done more than to have connected the coirp-dire of the Brehon Laws with the _pretium hominis_ of St. Patrick, and with the _pretium sanguinis_ of the ‘Canones Hibernenses,’ and with the clauses relating to homicide excerpted by the compiler of the so-called ‘Canones Wallici’ from the books of the Romans and Franks.

The connection, though traceable only through ecclesiastical channels, seems to establish a continuity as regards the fixed payment for homicide between the Breton and Irish churches, and possibly the churches of the Goidelic portion of South Wales, of the fifth and sixth centuries.

[Sidenote: Continuity of Irish and Breton custom as regards the ‘pretium hominis’ and payment in ancillæ.]

If it were suggested that the _pretium hominis_ of seven ancillæ might be an ecclesiastical invention originating with the missionary churches of the Armorican districts of Gaul, we should still have to inquire why these churches differed so much from other Gallic churches. Everywhere else the Church, finding it impossible to get rid of a deep-rooted custom, seems to have made compacts with the secular power, adopting the customary system of wergelds prevalent in each of the conquered and converted tribes, and giving to the several grades in the ecclesiastical hierarchy graduated wergelds placing them on a level with corresponding classes of tribesmen or laymen. Even in these Celtic Canons the clerical instinct, whilst apparently adopting the fixed wergeld or coirp-dire for laymen, claimed for the clergy a graduated wergeld.

The bishop, as we have seen according to the canons, claimed a sevenfold _pretium hominis_--seven times the price of seven ancillæ--because of his rank in the clerical hierarchy. He claimed too the _honour-price_ of seven ancillæ--the same as that of the Irish chieftain of a district for breach of his protection or precinct. The bishop seems to place himself here as elsewhere in these matters, on a level with the secular prince or even with the king.

And again, if St. Patrick in his ‘Confessions’ (a work the authenticity of which is generally accepted) could use, as he did, the _pretium hominis_ as a well-known unit of payment, it would seem that at least as early as the end of the fifth century the value of the _pretium hominis_ as a unit of payment was perfectly well understood. And this in itself is a proof of further antiquity.

The redeeming of baptized captives from slavery was moreover a recognised method of increasing the number of converts to the Christian Faith. In his equally authentic Epistle to the subjects of Coroticus St. Patrick speaks of the Roman and Gallic custom of Christians to send holy and fit men to the Franks and other nations with so many thousands of solidi for redeeming baptized captives, while Coroticus was killing and selling captives to a foreign people ignorant of God. Mr. Whitley Stokes, in editing this letter, suggests that this passage points to a date before the conversion of the Franks (A.D. 496).[92] The traffic in captives and slaves, and their sale perhaps into a still pagan corner of France, accords with the strangely local use of the _ancilla_ as the unit of payment as well in the Canons as in the Brehon Laws.

What, then, are we to make of this fixed wergeld of seven ancillæ? So far, we find it prevalent only in Ireland and in the Goidelic or non-Cymric districts of South Wales and Brittany. And the evidence seems to carry it back to the fifth century.

VII. THE WERGELD OF ANCIENT GALLIC CUSTOM. THE EVIDENCE OF CÆSAR.

[Sidenote: Cæsar does not state the amount of the Gallic wergeld, but the Druids had jurisdiction in cases of homicide.]

There seems to be left but one possible further source of evidence as regards the wergelds of the Gallic tribes before the Roman conquest, viz. that of Cæsar. Speaking of the Druids, his words are these:--

Illi rebus divinis intersunt, sacrificia publica ac privata
procurant, religiones interpretantur. Ad eos magnus adulescentium
numerus disciplinæ causa concurrit, magnoque hi sunt apud eos
honore. Nam fere de omnibus controversiis publicis privatisque
constituunt, et, si quod est admissum facinus, _si cædes
facta_, si de hereditate, si de finibus controversia est, iidem
decernunt, præmia pœnasque constituunt (vi. 13).

There is certainly nothing in these words, when carefully considered, which indicates in the slightest degree whether the Gallic wergeld was fixed, or graduated according to rank. They amount to this:--

The Druids have cognisance of nearly all public and private
controversies, and if any crime has been committed, if a
murder has been done, if concerning inheritance, if concerning
boundaries there is controversy, it is they who decide, and they
fix the compensation and penalties.

On the occasion of any murder committed, there would be plenty of room for controversy whether the wergeld were fixed or graduated according to rank, or even, as is quite possible, left open to the judgment of the Druids. So that we gain nothing from Cæsar’s evidence on this particular point, further than that the penalties for slaying were within the jurisdiction of the Druids.

It may, however, be well to notice that this passage has been the subject of controversy upon another point of interest to this inquiry: viz. on the question whether the evidence of Cæsar should be taken as in favour of the theory of the communistic ownership of land in Gaul or that of individual ownership.

M. Fustel de Coulanges[93] has argued with great force that the statement of Cæsar that the Druids were accustomed to settle controversies whether _de hereditate_ or _de finibus_ implies that in his view there must have been something like private property whether of individuals or of families.

[Sidenote: The evidence of Cæsar on tribal landholding.]

Now if a connection may be traced between the liability of the whole kindred for wergeld and the occupation of land by kindreds, with lesser divisions into something like _gwelys_, then, without pressing the point too far, without suggesting that the Welsh or the Irish form of tribal occupation of land may have been exactly that which in Cæsar’s time prevailed in Gaul, we may at least say that the analogy of the Welsh and Irish examples would lead us, from a tribal point of view, to judge that the form of land occupation in Gaul was not likely to be either absolute individual or absolute communal ownership. And as under Welsh and Irish tribal custom and forms of land occupation there was plenty of room for public and private controversies both _de hereditate_ and _de finibus_, it may fairly be suggested that some form of tribal land occupation would at least be more consistent with what Cæsar recorded in the few sentences under review than either complete individual or complete communal ownership would be.

But, passing from the passages already quoted to Cæsar’s further statements relating to the Druids, light seems to pour from them into another matter otherwise very difficult to realise.

It is at first sight with something like amazement that we view the arrogance of the pretension of the missionary priests of the Christian Church to impose what must have been galling penances upon chieftains and tribesmen who had committed crimes of murder or incest. Still more surprised might we well be that they had any chance of securing obedience.

The evidence of Gildas and of the Cadoc records quoted in a former volume is sufficient to show that to a most astonishing extent even chieftains submitted to the penalties and penances imposed by priests and monks who were claiming for themselves immunity from secular services and payments. The very fact that the Ecclesiastical Canons contain the rules we have examined as to the payments for homicide by the kindred of the murderer seems to involve the bold claim of the Church to bring the punishment of crime within its jurisdiction. We have seen also how in these Canons the right of the bishop to be placed in social rank on a level with the highest chieftains and princes and kings was already taken for granted in the corner of Gaul so closely connected with South Wales and Ireland.

[Sidenote: The position of the Druids paved the way for clerical pretensions.]

The statement of Cæsar opens our eyes to the extent to which under the earliest prevalent system of religious belief the way was paved both for these clerical pretensions and also for the submission of chieftains and people to the penances imposed.

After describing, as above, the prerogatives of the Druids, Cæsar adds a few words to describe the nature of the _sanctions_ by which obedience to their awards was secured:--

vi. xiii. 5. Si qui aut privatus aut populus eorum decreto
non stetit, sacrificiis interdicunt. Hæc pœna apud eos est
gravissima. Quibus ita est interdictum, hi numero impiorum ac
sceleratorum habentur, his omnes decedunt, aditum sermonemque
defugiunt, ne quid ex contagione incommodi accipiant, neque his
petentibus jus redditur, neque honos ullus communicatur.

Whoever of them, whether a private person or a people, does not
stand to the award, they interdict from the sacrifices. This
penalty is with them a most heavy one. Those who come under this
interdict are looked upon as in the number of the impious and
criminal. These all shun, avoiding touch or speech, lest they
should be hurt by the contagion. Nor to these is justice given if
they seek it, nor is any honour shared with them.

Then in the passage following Cæsar describes how strongly organised was the power which the Druids represented and which they had at their back:--

His autem omnibus Druidibus præest unus, qui summam inter eos
habet auctoritatem. Hoc mortuo aut, si qui ex reliquis excellit
dignitate, succedit, aut, si sunt plures pares, suffragio
Druidum, nonnumquam etiam armis, de principatu contendunt.
Hi certo anni tempore in finibus Carnutum, quæ regio totius
Galliæ media habetur, considunt in loco consecrato. Huc omnes
undique, qui controversias habent, conveniunt, eorumque decretis
judiciisque parent.…

Above all these Druids, there is one who holds the chief
authority among them. To him, if dead, if there be one of the
others excelling in dignity, he succeeds, or if there be many
equal, by the suffrage of the Druids, sometimes even by arms,
they contend for the chieftainship. At a fixed time of year they
hold session in a consecrated place in the district of the Carnutes,
which region is held to be the centre of all Gaul. Here all, from
everywhere, who have controversies, assemble and submit to their
decrees and judgments.…

Druides a bello abesse consuerunt neque tributa una cum reliquis
pendunt: militiæ vacationem omniumque rerum habent immunitatem.
Tantis excitati præmiis et sua sponte multi in disciplinam
conveniunt et a parentibus propinquisque mittuntur.

The Druids are accustomed to keep away from war, nor do they pay
tribute with other people; they have exemption from military
service and a general immunity. Induced by so great advantages,
many join their order both of their own accord and sent by
parents and relations.

It is not necessary here to follow further these familiar passages in the ‘De Bello Gallico’ or to inquire more deeply into the religion of the Gauls. It is enough that the religion or superstition of the Gauls was sufficient in itself, and sufficiently deeply believed in, to fortify the influence and power of the Druids with the necessary sanction, and to outlive the disintegration which Roman conquest, in spite of its tolerance to tribal religions, must have in degree produced. The testimony of Renan to the deep-rooted superstition of the Breton population, and the lingering presence even to this day of instincts and customs reaching back to a stratum of indigenous ideas underlying Roman and Christian civilisation, shows, as Irish and Welsh legends do also, that feelings of this kind are not subject to sudden change.

And when we try to realise the position and work of the early Gallic or Breton or Cornish or Welsh or Irish churches from the fifth century onwards, we seem to see how their position and work were made possible only by the fact that what was technically called the conversion of a people to Christianity was not after all so great a revolution as one might at first sight have thought.

The missionary monks or priests, it might almost be said, _naturally_ took the place of the Druids in the minds of the people. They had power to shut out the criminal from the sacrifices of the Christian altar, just as the Druids could from theirs. The conversion, such as it was, meant at least that in the belief of the people the spiritual powers were transferred to the priest, and that the old sanctions of superstition naturally followed the transfer. Thereby was secured to the Church something of the same prestige and power which had once belonged to the priests of the old religion.

[Sidenote: The tribes were used to the central power of the Druids and of Imperial Rome and the Church took their place.]

When it is considered how the organised and world-wide system of the Church, with its centre in Rome, continuing to some extent the prestige and the civilisation of Imperial Rome, must have appeared to the chieftains and petty kings of uncivilised tribes, it may be recognised that in this respect also it resembled to their eyes the power of the priesthood of the old religion with its centre at Chartres and reaching in its authority from Britain to Southern Gaul. So that in this respect also the way was paved for the Church in the minds of the people. The tribes were used to the idea of a great central spiritual power, and in the Church, by transfer from the old to the new religion, they found it again.